ICBC Benefits Can ‘Revive’ After 104 Week Period
A recent ruling in British Columbia’s highest court has changed the law regarding the transition between short-term and long-term ICBC disability benefits.
Drivers in British Columbia can be eligible for both short-term and long-term disability benefits if they are covered under an ICBC policy. Under s.80 of the Insurance (Vehicle) Regulation, drivers who are insured are entitled to 104 weeks of disability payments. Under s. 86 of the Insurance (Vehicle) Regulation, it states “Where an injury for which disability benefits are being paid to an insured under section 80 continues, at the end of the 104 week period, to disable the insured as described in the applicable section, the corporation shall… continue to pay the applicable amount of disability benefits.”
In the case Symons v. ICBC, Ms. Symons was seriously injured in a car accident that took place in 2008. She suffered moderate soft tissue injuries, headaches, facial bruising and a herniated disc at her lower spine. Immediately after the accident, Ms. Symons received short-term disability benefits under s.80 of the Insurance (Vehicle) Regulation for two weeks to cover time she took off work.
More than 104 weeks after the accident, Ms. Symons began suffering disabling injuries as a result of the collision in 2008. Ms. Symons was diagnosed with having a ‘large right-paracentral disc protrusion’ in the lower spine. Ms. Symons underwent two different surgeries that were both ultimately unsuccessful. At the time of the trial she was on a waitlist for spinal fusion surgery.
After the diagnosis, Ms. Symons sought long-term disability benefits from ICBC but was denied relief. ICBC claimed that Ms. Symons was not entitled to long-term disability benefits under s.86 of the Insurance (Vehicle) Regulation because she was not suffering from injuries and claiming short-term disability benefits under s.80 of the Insurance (Vehicle) Regulation 104 weeks from her accident. The British Columbia Supreme Court ultimately disagreed with ICBC, determining their approach to be overly rigid and impractical. ICBC appealed the trial judge’s decision.
Madam Justice Newbury speaking on behalf of the Court of Appeal wrote:
I think this cuts too fine a line… In my view, if the sections are read, as ICBC suggests, to mean that only a person who is disabled “at” the 104-week mark can obtain benefits after that period, that interpretation does not accord with the context and object of the legislation… Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.
The Court of Appeal then dismissed the appeal and upheld the trial judge’s decision.